Each viewing of Internet site does not renew defamation cause of action

Jan. 27, 2010 – A claim for defamation against sports announcer Bob Uecker and the Brewers baseball team failed under a two-year statute of limitations even if the disputed material remains available on the Internet beyond that period.

In Ladd v. Uecker, 2009AP596, the Wisconsin Court of Appeals said that no state court had yet addressed whether allegedly defamatory material is “republished” each time it is viewed. The court said Wisconsin would follow the majority of courts and adopt the single-publication rule found in Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984), and Restatement (Second) of Torts sec. 577A.

A ‘devoted fan’

Ann Ladd, a self-described “devoted fan,” filed a complaint on Sept. 8, 2008, alleging that Uecker and the Brewers defamed her between June 1 and Sept. 7, 2006 by publicizing an affidavit in support of an injunction against her.

Uecker had claimed in the affidavit that Ladd had engaged in a six- or seven-year pattern of harassment and that document later appeared on a web site called thesmokinggun.com. Ladd also complained that the Brewers posted on their web site a defamatory article regarding her removal from a spring training game in Maryvale, Ariz.

Ladd additionally claimed “false light invasion of privacy” for, among other things, the defendants’ making and republishing false, defamatory statements and photographing her in the stands at various baseball stadiums.

The Waukesha County Circuit Court granted the defendants’ motion to dismiss, finding that all matters alleged to have occurred before Sept. 7, 2006 were barred by the statute of limitations and Uecker’s statements after that date were privileged as those made during a judicial proceeding. The court found that the Brewers were protected by the wire-service privilege when it posted the AP news story to its web site. Lastly, the court said that Ladd’s invasion of privacy claims lacked legal support.

No ‘republication’

In a Jan. 27 opinion authored by Judge Harry G. Snyder, the court of appeals affirmed the circuit court decision.

“Distilled to its essence, Ladd’s claim is that the false depiction of her as a stalker has damaged her personal and professional reputations,” the court wrote. “Except for the continued injunction hearing on September 7, 2006, however, all of these incidents occurred more than two years before Ladd filed her complaint.”

The court rejected Ladd’s argument that when information remains accessible on the Internet, it is republished each time someone visits that web site or other sites that have picked it up. The court quoted the Restatement (Second) of Torts sec. 577A(3) which holds, “Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.”

If Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations, the court held. “Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web,” the court added. “We reject the notion that each ‘hit’ or viewing of the same information should be considered a new publication that retriggers the statute of limitations.”

Regarding Uecker’s statements at a Sept. 7, 2006 injunction hearing, the court agreed that those statements made in the course of a judicial proceeding are absolutely privileged. Ladd argued that Uecker’s statements lost their absolute privilege through “excessive publication” on the Internet, but the court insisted that an absolute privilege gives “complete protection.”

A ticket is a revocable license

Ladd failed to persuade the court that the Brewers had defamed her when they had her removed from the spring training facility in March 2007. Pursuant to the injunction, the team had advised Ladd in December 2006 that they would deny her entry if she purchased a ticket.

“As Ladd’s ticket indicates, a ticket of admission to a place of amusement is simply a license to view a performance that the owner or proprietor may revoke at will,” the court wrote. Further, the court found that the Brewers had a conditional privilege to make statements about the incident to the Phoenix police and that Ladd failed to rebut this privilege by showing actual malice.

Wire service privilege

The court rejected Ladd’s claim that the Brewers had defamed her by posting online a news article about her ejection.

Besides faulting Ladd for not giving the Brewers an opportunity to correct the allegedly libelous matter before filing suit, the court said the team is shielded by the “wire-service” privilege. That is, the article bore an Associated Press copyright and so news disseminators who rely on the accuracy of a wire service release are not negligent as a matter of law, the court explained.

No invasion of privacy

The court rebuffed Ladd’s invasion of privacy claims under any of the theories recognized in Wisconsin.

“Ladd alleges that the Brewers took photographs of her in the stands at baseball parks and disseminated her ‘mug shot’ and information about the injunction and the spring training incident,” the court wrote. “None of these involved private places, using her likeness for advertising or trade, or depictions of nudity. Further they are matters of public record.”